SC2386

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 11 OF 2023

LEVI WARTOVO
Applicant

V

MARSH NARAWEC
First Respondent

FIDELIS HAROSOL,
RETURNING OFFICER, WAU-WARIA OPEN
Second Respondent

SIMON SINAI, ELECTORAL COMMISSIONER
Second Respondent

Waigani: Cannings J
2023: 28th, 29th April

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to dismiss election petition – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The National Court upheld objections to competency of an election petition based on the ground that one of the attesting witnesses did not state their occupation, as required by s 208(d) of the Organic Law on National and Local-Level Government Elections. The National Court also ruled that both attesting witnesses had given insufficient details of their residential address. The National Court ordered amongst other things that: “(1) The objections to competency or [sic] the petition are upheld; (2) The petition is wholly dismissed”. The petitioner then filed an application in the Supreme Court seeking leave to review the decision of the National Court. The proposed grounds of review fell into two categories. First it was argued that the primary judge erred in law by not exercising the discretion under ss 212 and 217 of the Organic Law to allow the applicant to amend the petition to insert the occupation of the second attesting witness. Secondly it was argued that the terms of the order of the National Court were confusing and contradictory. 

Held:

(1)	To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) in so far as the application relates to a point of law, that it is an important point, which is not without merit or (ii) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2)	The primary judge did not err by regarding the failure of one attesting witness to state their occupation as a fatal and incurable defect. There was no discretion available to the primary judge to disregard the defect or to allow an oral application to amend the petition beyond the period within which the petition had to be filed. There was no arguable or important point of law that would benefit from resolution by the Supreme Court. 

(3)	There was a typographical error in the order of the National Court, where the word “or” is used in order (1), when obviously the intended word was “of”. The order must be interpreted in a common-sense way in the context of the reasons for decision. The second proposed ground of review was not arguable and did not raise any important point of law.

(4)	There were no exceptional circumstances and it was not in the interests of justice to grant leave. Therefore leave was refused. 

Cases Cited:

The following cases are cited in the judgment:

Agiru v Makiba (2023) SC2366 
Biri v Ninkama [1982] PNGLR 342
Hagahuno v Tuke (2020) SC2018
Kikala v Electoral Commission (2013) SC1295
Pundari v Yakos (2023) SC2345
Samuel v Morauta (2018) N7098
Wartovo v Narawec & Electoral Commission EP No 31 of 2022, 02.03.23, unreported

Counsel:

M Wenge, for the Applicant
S Wanis, for the First Respondent
J Simbala, for the Second & Third Respondents

29th April, 2023

1.	CANNINGS J: This is the ruling on an application for leave to review a decision of the National Court in an election petition.

2.	The first respondent, Marsh Narawec, won the seat of Wau-Waria Open at the 2022 general election. His election was challenged by the applicant, Levi Wartovo, through an election petition, EP 31 of 2022, in the National Court.

3.	On 2 March 2023 the National Court constituted by Justice Batari dismissed the petition upon upholding objections to competency of the petition, made by the first respondent and by the second and third respondents (the returning officer and the Electoral Commissioner). The order of the Court was expressed in paragraph 38 of the judgment (Wartovo v Narawec & Electoral Commission EP No 31 of 2022, 02.03.23, unreported) in the following terms:

1.	The objections to competency or [sic] the petition are upheld.
2.	The petition is wholly dismissed.
3.	The petitioner shall pay the respondents’ costs in relation to the petition in the fixed sum of K2,500.00 each.
4.	The Registrar shall promptly forward to the Clerk of the National Parliament a copy of this order pursuant to s 221 of the Organic Law.   

4.	The primary ground of objection was that the second attesting witness, Margen Gurua, did not state their occupation. His Honour held that this was a fatal defect in the petition, as a statement of occupation was a specific requirement of s 208(d) of the Organic Law on National and Local-Level Government Elections. Section 208 (requisites of petition) states:

A petition shall—

(a)	set out the facts relied on to invalidate the election or return; and
(b)	specify the relief to which the petitioner claims to be entitled; and
(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d)	be attested by two witnesses whose occupations and addresses are stated; and
(e)	be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

5.	His Honour held, at paragraphs 17-19 of the judgment of 2 March 2023:

Mr Wenge [counsel for the petitioner] argued that the court exercise its discretion under s 212 (power of the court) and s 217 of the Organic Law to accept the petition as statutorily compliant and in fairness.

The existence of substantive compliance may determine an outcome based on prejudice or fairness. However, in my view, this has no relevance, nor does it arise under the first limb of s 208(d). The very strict requirement of the provision leaves no room for exercise of discretion to dispense with a condition precedent. All the essential elements or requirements pertaining to attestation under s 208(d) must be met because of s 210. There is no room for substantial compliance argument against a mandatory requirement of the law. The absence of one or a number of those elements in s 208 or any of the elements of s 208(d) will render the petition incompetent.

In this case, Mr Wenge conceded … the omission in stating the occupation of the second attesting witness on the attestation form. That is a fatal error. The absence of an essential element of a constitutional law requisite makes the petition incomplete and hence, an incompetent legal document for challenging an election result.
6.	His Honour remarked that the applicant could have made a formal application, supported by affidavit, to amend the petition by inclusion of the second attesting witness’s occupation, provided that the application was made within the 40-day period stipulated by s 208(e) of the Organic Law. His Honour stated, at paragraph 22:

The petitioner failed to do that in this case. Consequently, the petition has remained materially and irreparably defective since filing.

7.	His Honour upheld the primary ground of objection and ruled that the petition was incompetent and must be dismissed. His Honour also held that the addresses provided by the two attesting witnesses were insufficient, and ruled that the petition was incompetent for that reason also.   

LEAVE APPLICATION

8.	The petitioner, now the applicant, Mr Wartovo, seeks leave to apply to the Supreme Court for review under s 155(2)(b) of the Constitution of his Honour’s decision. His application is opposed by the respondents.

9.	The applicant’s proposed grounds of review fall into two categories. First it is argued that his Honour erred in law by not exercising the discretion under ss 212 and 217 of the Organic Law to allow the applicant to amend the petition to insert the occupation of the second attesting witness. 

10.	Secondly it is argued that the terms of the order of the National Court are confusing and contradictory as on the one hand it is stated that the petition is dismissed and on the other hand it is stated that the petition is upheld.

11.	The respondents argue that the application is without merit as there are no important points of law to be determined, and there are no exceptional circumstances warranting the grant of leave. 

CRITERIA 

12.	There are many cases that have over the years set out the criteria to be taken into account when determining an application for leave of this nature. The import of those cases was recently summarised by Hartshorn J in two cases, Pundari v Yakos (2023) SC2345 and Agiru v Makiba (2023) SC2366. In each case his Honour refused leave for review of decisions of the National Court in an election petition. 

13.	His Honour spelt out the criteria for granting leave. The applicant must show:

1.	in so far as the application relates to a point of law, that it is an important point, which is not without merit or in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and 

2.	there are exceptional circumstances; and 

3.	it is in the interests of justice to grant leave.

14.	I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice. 

APPLYING THE CRITERIA 

15.	The argument that the primary judge erred by not exercising the discretion under ss 212 and 217 of the Organic Law to allow the applicant to amend the petition to insert the occupation of the second attesting witness

16.	The applicant claims that his Honour had a discretion under ss 212(1) and 217 to allow amendment of the petition, and refused to exercise that discretion when the applicant made an oral application for amendment.

17.	Section 212(1) states:

In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.

18.	Section 217 states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

19.	The applicant argues that his Honour did not take s 217 into account and was not guided by the substantial merits and good conscience of the case. 

20.	I see no merit in the applicant’s arguments. Nothing in ss 212(1) or 217 confers discretion on the National Court to disregard the requirements of s 208, including the specific requirements of s 208(d). Nothing in those provisions allows the court to allow amendment of a petition after the 40-day period for filing a petition has lapsed. It is not correct to say that his Honour did not take s 217 into account. He did take it into account and ruled that it had no relevance. 

21.	I consider that the approach taken by his Honour was consistent with a long line of authority, beginning with Biri v Ninkama [1982] PNGLR 342, which has maintained that there must be strict compliance with each of the requirements of s 208 of the Organic Law. The recent decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018, reinforced what was stated in Kikala v Electoral Commission (2013) SC1295: s 217 applies from the beginning to the end of an election petition, including during the hearing of an objection to competency. However, those cases do not detract from the fundamental principle applied by the primary judge in this case, that strict compliance with s 208 is necessary. 

22.	If his Honour had allowed the oral application for amendment of the petition, such a decision would have marked a significant departure from the time-honoured principle that strict compliance with s 208 is necessary.

23.	I point out that I decided the same issue (whether a petition which did not include the occupation of an attesting witness was incompetent) in the same way the primary judge did in this case, in Samuel v Morauta (2018) N7098. I held:

The statement of occupation requirement is a mandatory part of s 208(d), which contains three requirements:

•	the petition must be attested by two witnesses; and 
•	each witness must state his or her occupation; and
•	each witness must state his or her address. 

I uphold the submissions of Mr Sirigoi and Mr Ole [counsel for the respondents] that strict compliance with each of those requirements of s 208(d) is essential. Failure to comply with one requirement is fatal to the petition. It was a defect in the petition incapable of being cured after the 40-day period allowed by s 208(e) of the Organic Law. 

24.	I consider that there was no discretion available to the primary judge to disregard the defect in the petition or to allow an oral application to amend the petition. There is no arguable or important point of law that would benefit from resolution by the Supreme Court. 

The argument that the terms of the order of the National Court are confusing and contradictory

25.	It is true that at first glance order No 1 is confusing and contradictory. It states:

The objections to competency or the petition are upheld.
 
26.	On the one hand it is stated that the petition is dismissed and on the other hand it is stated that the petition is upheld.

27.	However, any initial confusion as to the meaning of the order is immediately overcome as it is clear that there is a typographical error in the order. The word “or” is used in order (1), when obviously the intended word was “of”. The order must be interpreted in a common-sense way in the context of the reasons for decision. The only proper way to interpret order (1) is to read it as stating that “The objections to competency [of] the petition are upheld”. 

28.	The second proposed ground of review is a frivolous argument that has no merit and does not raise any important point of law.

29.	That means that each of the proposed grounds of review is not arguable and does not raise any important point of law. The first of the three criteria identified in Pundari v Yakos (2023) SC2345 and Agiru v Makiba (2023) SC2366 is not satisfied.

30.	As to the second and third criteria, I find that there are no exceptional circumstances and it is not in the interests of justice to grant leave for review. Leave is therefore refused.
 
ORDER

(1)	The application for leave, filed 15 March 2023, to apply for review of the decision of the National Court of 2 March 2023 in EP No 31 of 2022, is refused. 

(2)	The applicant shall pay the respondents’ costs of the application on a party-party basis, which shall if not agreed be taxed.

(3)	The file is closed.

___________________________________________________________
Luthers Lawyers : Lawyers for the Applicant	
Solomon Wanis Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers	: Lawyers for the Second & Third Respondents